Attorneys should not overlook the ability to obtain information through a subpoena. The defense, in a criminal case, found out that this was the best avenue to obtain electronic information from a victim. The defendant in State v. Bray, 281 Or. App. 584 (2016), was convicted of various sexual-assault-related crimes. On appeal, he argued that the trial court erred in refusing to compel the prosecution to secure electronic data from Google that federal law permitted Google to turn over to the prosecution but not the defense. He also argued that the trial court erred in denying his motion to compel the victim to comply with a subpoena to turn over her computer for in camera inspection. The Oregon Court of Appeals rejected the first argument, concluding that Oregon law did not require the prosecution to secure data that was not within its control. However, the appellate court vacated the convictions and remanded because, under Oregon law, the defendant had a “broad right” to compel the production of evidence and the subpoena was not overbroad.
Bray is a criminal proceeding and addresses the rights of both a defendant and a victim with regard to discovery under the laws of a particular state and constitutional guarantees. It offers several pointers for attorneys in both criminal and civil practice. First, state-specific statutes and rules must be consulted to determine what electronically stored information is or is not discoverable. Second, particularly in the criminal context, constitutional rights may compel or limit discovery.
Ronald Hedges is with Dentons in New York, New York.